Sunday, December 11, 2016

What determines legitimacy?

In response to my post called “The Silver Lining,” a friend of mine noticed that I didn’t think the law in general
was “legitimate.”He asked what I meant
by that, and "what determines legitimacy?”Here is my response.

In layman’s terms, legitimacy is
simply “the consent of the governed”: a people’s agreement to be subject to a
certain governing system and to obey its laws.
I and many other people value this consent as a necessary prerequisite
to ethical government; without it, what right does anybody have to rule anyone?Unfortunately, it's practically impossible to
get ALL of the governed to consent to much of anything in a nation of any
significant size, so no government can ever be fully legitimate. In practice, this means legitimacy can only exist
on a spectrum, based on what portion
of the governed have consented to be subject to the government in question. As in any other area of life, the consent
must be active, ongoing, and unambiguous, or it cannot be assumed.

The best way I know of for the
people to specify what government they do and do not consent to is to write
down it down in a formal contract, also known as a “social” contract
or a constitution. The best
constitutions specify, as clearly as the language of the day allows, precisely
which powers the governed people consent to have wielded over them, as well as
which rights the governed people wish to keep for themselves. By finding whichever version of that contract
is acceptable to the highest number of people, and then ensuring that the
government strictly abides by the terms of that contract moving forward, we can
at least maximize our government's legitimacy relative to alternative systems.

Of course, historically speaking, the
actual circumstances of most constitutions' creation is much less democratic
than my ideal scenario would hope for. And even under ideal circumstances,
there are practical shortcomings to this approach. For example, the consent of one's children
cannot be assumed just because the parent has given it, which means technically
states should be tinkering with these contracts with each successive generation. I don't know a pragmatic way to do that. A libertarian from the late 1800's named
Lysander Spooner wrote a pretty famous essay called "The Constitution of No Authority" in which he basically tears
apart the multitudinous logical fallacies inherent in the notion that anybody
alive today has meaningfully consented to the government we have. I’m sympathetic to his arguments.

But even so, written constitutions
are the least-bad way I know of to keep the government’s actions roughly
in-line with the powers the people have consented to grant it. The United States was the first nation to
truly experiment with this model, and so far I think it has been a successful
experiment. Thanks in part to that success, written constitutions have
fundamentally revolutionized the way people the world over now conceive of
their relationship with the state, in ways I believe were also overwhelmingly
positive. I’m proud of that history, and
committed to the continued success of that experiment, which is why I swore an oath
to “support and defend” that constitution whenever it’s threatened.

Unfortunately,
as I wrote in this article, I don’t believe our modern government’s level of
legitimacy is anywhere near as high on this spectrum as it should be, nor as high
as it’s often portrayed. One primary
reason for this is that the powers wielded by our government have grown
egregiously beyond those powers authorized by the constitution it’s supposed to
be adhering to. In place of proposing
explicit amendments to the contract, and putting them up for a vote requiring a
high threshold of consent (roughly 67-75% over the course of several years),
politicians have found it more expedient to either include their proposals
under preposterously broad re-interpretations of the constitution’s original
meaning, or to simply point to slim and fickle victories in a deeply flawed
election process as proof the people support their proposed new power. This trend, alongside others in law enforcement, have made our government’s claim to legitimacy
even more tenuous than it already was.

It
is ridiculous, in my opinion, to pretend that winning a plurality of the votes
in a politically ignorant nation, in an election between two very unpopular
people selected by two very-unpopular parties, with only 55% voter turnout, and
millions staying home due to the Electoral College and gerrymandered districts,
amounts to any meaningful consent on the part of the governed to EVERY SINGLE POWER which that candidate
may wish to wield. As such, claims that
whatever new uses of state violence Trump has dreamed up amount to a legitimate
expression of the popular will strike me absurd.If “the people have spoken” at all in this
election, it came out pretty garbled, and is no basis for inferring “consent”
to anything.